The Online Library of Liberty

A project of Liberty Fund, Inc.

• Principles of Judicial Procedure, With the Outlines of a Procedure Code.
• Note By the Editor.
• Preface.
• Introduction.
• Chapter I.: General View—ends of Judicature.
• Chapter II.: Ends Apt and Unapt.
• Chapter III.: Procedure—its Relation to the Rest of the Law.
• Chapter IV.: Judiciary Establishment.
• Chapter V.: Procedure—its Subject-matters.
• Chapter VI.: All-comprehensive Arrangements.
• Chapter VII.: Practical General Rules.
• Chapter VIII.: Judicial Application.
• Chapter IX.: Proxies.
• Chapter X.: Judicial Communication.
• Chapter XI.: Evidence.
• Chapter XII.: Initiatory Hearing.
• Chapter XIII.: Defence, How Elicited.
• Chapter XIV.: Suits, Their Sorts.
• Chapter XV.: Suits, Continuance Of.
• Chapter XVI.: Suits—termination.
• Chapter XVII.: Suits, Their Stages.
• Chapter XVIII.: Means of Execution.
• Chapter XIX.: Counter-security.
• Chapter XX.: Remedies,—compensation.
• Chapter XXI.: Judicial Transfer.
• Chapter XXII.: Prehension.
• Chapter XXIII.: Jury-trial.
• Chapter XXIV.: Special Juries.
• Chapter XXV.: Grand Juries.
• Chapter XXVI.: Quasi-jury.
• Chapter XXVII.: Recapitulatory Examination, Or Quasi-trial.
• Chapter XXVIII.: Appeal and Quasi-appeal.
• Chapter XXIX.: Natural and Technical Systems Compared.
• Appendix A.: Initial Sketch of the Procedure Code.
• Appendix B.: Account-taking Judicatories.
• Appendix C.: British India—jury System.
• From the Right Honourable Sir Alexander Johnston, to the Right Honourable Charles W. Williams Wynn, President of the Board of Controul.
• The Rationale of Reward.
• Advertisement By the Editor.
• Remarks By Mr. Bentham.
• Preliminary Observations.
• Book I.—: Of Rewards In General.
• Chapter I.: Definitions.
• Chapter II.: Matter of Reward—sources.
• Chapter III.: Of Reward and Punishment Combined.
• Chapter IV.: Of the Union of Interest With Duty, and of Self-executing Laws.
• Chapter V.: Matter of Reward—reasons For Husbanding.
• Chapter VI.: Remuneration Ex Post Facto.
• Chapter VII.: Punition and Remuneration—their Relations.
• Chapter VIII.: Remuneration—where Hurtful.
• Chapter IX.: Remuneration—where Needless.
• Chapter X.: Proportion As to Rewards.
• Chapter XI.: Choice As to Rewards.
• Chapter XII.: Procedure As to Rewards.
• Chapter XIII.: Rewards to Informers.
• Chapter XIV.: Rewards to Accomplices.
• Chapter XV.: Competition As to Rewards.
• Chapter XVI.: Rewards For Virtue.
• Chapter XVII.: Accompaniments to Remuneration.
• Book II.—: Rewards Applied to Offices.
• Chapter I.: Salary—how a Reward.
• Chapter II.: Rules As to Emoluments.
• Chapter III.: Fees and Perquisites—none.
• Chapter IV.: Minimize Emolument.
• Chapter V.: No More Nominal Than Real.
• Chapter VI.: Couple Burthen With Benefit.
• Chapter VII.: By Emoluments Exclude Corruption.
• Chapter VIII.: Give Pensions of Retreat.
• Chapter IX.: Of the Sale of Offices.
• Chapter X.: Of Qualifications.
• Chapter XI.: Of Trust and Contract Management.
• Chapter XII.: Of Reforms.
• Book III.—: Reward Applied to Art and Science.
• Chapter I.: Art and Science—divisions.
• Chapter II.: Art and Science—advancement.
• Chapter III.: Art and Science—diffusion.
• Appendix.
• Leading Principles of a Constitutional Code, For Any State.
• Section I.: Ends Aimed At.
• Section II.: Principal Means Employed For the Attainment of the Above Ends.
• Liberty of the Press, and Public Discussion.
• Advertisement.
• Jeremy Bentham to the Spanish People.
• Letter I.: On the Liberty of the Press—the Approaching Eight Months’ Sleep of the Cortes—and the Exclusion of Experience From the Succeeding Cortes.
• Letter II.: On the Liberty of Public Discussion In Free Meetings.
• Letter III.: On the Liberty of Public Discussion In Free Meetings—continuation From Letter II.
• Letter IV.: On the Liberty of Public Discussion In Free Meetings—continuation of the Subject From Letter III.
• An Essay On Political Tactics, Or Inquiries Concerning the Discipline and Mode of Proceeding Proper to Be Observed In Political Assemblies: Principally Applied to the Practice of the British Parliament, and to the Constitution and Situation of the Nati
• Chapter I.: General Considerations.
• Chapter II.: Of Publicity.
• Chapter III.: Of the Place of Meeting and Its Dependencies.
• Chapter IV.: Of What Concerns the Members Present At a Legislative Assembly.
• Chapter V.: Of the Presidents and Vice-presidents Belonging to Political Assemblies.
• Chapter VI. *: of the Mode of Proceeding In a Political Assembly In the Formation of Its Decisions.
• Chapter VII.: Of the Proposal of Measures For Adoption.
• Chapter VIII.: Of the Different Acts Which Enter Into the Formation of a Decree.
• Chapter IX.: Of the Promulgation of Motions—of Bills—of Amendments, and Their Withdrawment.
• Chapter X.: Of the Drawing Up of Laws.
• Chapter XI.: Of Debates.
• Chapter XII.: Of Amendments.
• Chapter XIII.: Of Dilatory Motions, Or Motions of Adjournment.
• Chapter XIV.: Of Voting.
• Chapter XV.: Of Committees.
• Chapter XVI.: Of Formulas.
• The Book of Fallacies: From Unfinished Papers of Jeremy Bentham. Edited By a Friend.
• Preface By the Editor of the Original Edition.
• The Book of Fallacies.: Introduction.
• Section I.: A Fallacy, What.
• Section II.: Fallacies, By Whom Treated of Heretofore.
• Section III.: Relation of Fallacies to Vulgar Errors.
• Section IV.: Political Fallacies the Subject of This Work.
• Section V.: Division Or Classification of Fallacies
• Section VI.: Nomenclature of Political Fallacies.
• Section VII.: Contrast Between the Present Work and Hamilton’s “parliamentary Logic.”
• Part I.: Fallacies of Authority, the Subject of Which Is Authority In Various Shapes, and the Object to Repress All Exercise of the Reasoning Faculty.
• Chapter I.
• Chapter II.: The Wisdom of Our Ancestors; Or Chinese Argument—( Ad Verecundiam. )
• Chapter III.: Fallacy of Irrevocable Laws.
• Chapter IV.: No-precedent Argument—( Ad Verecundiam. )
• Chapter V.
• Chapter VI.: Laudatory Personalities— (ad Amicitiam.)
• Part II.: Fallacies of Danger, the Subject-matter of Which Is Danger In Various Shapes, and the Object to Repress Discussion Altogether, By Exciting Alarm.
• Chapter I.: Vituperative Personalities— (ad Odium.)
• Chapter II.
• Chapter III.: Fallacy of Distrust, Or, What’s At the Bottom?—( Ad Metum. )
• Chapter IV.: Official Malefactor’s Screen—( Ad Metum. )
• Chapter V.: Accusation-scarer’s Device—( Ad Metum. )
• Part III.: Fallacies of Delay, the Subject-matter of Which Is Delay In Various Shapes—and the Object, to Postpone Discussion, With a View of Eluding It.
• Chapter I.: The Quietist, Or “no Complaint”—( Ad Quietem )
• Chapter II.: Fallacy of False Consolation— (ad Quietem.)
• Chapter III.: Procrastinator’s Argument ( Ad Socordiam. )
• Chapter IV.: Snail’s-pace Argument.—( Ad Socordiam. )
• Chapter V.: Fallacy of Artful Diversion—( Ad Verecundiam. )
• Part IV.: Fallacies of Confusion, the Object of Which Is, to Perplex, When Discussion Can No Longer Be Avoided.
• Chapter I.: Question-begging Appellatives—( Ad Judicium. )
• Chapter II.: Impostor Terms—( Ad Judicium. )
• Chapter III.: Vague Generalities—( Ad Judicium. )
• Chapter IV.: Allegorical Idols—( Ad Imaginationem. )
• Chapter V.: Sweeping Classifications—( Ad Judicium. )
• Chapter VI.: Sham Distinctions—( Ad Judicium. )
• Chapter VII.: Popular Corruption—( Ad Superbiam. )
• Chapter VIII.: Observations On the Seven Preceding Fallacies.
• Chapter IX.: Anti-rational Fallacies—( Ad Verecundiam. )
• Chapter X.: Paradoxical Assertion—( Ad Judicium. )
• Chapter XI. :non-causa Pro Causa: Or, Cause and Obstacle Confounded—( Ad Judicium. )
• Chapter XII.: Partiality-preacher’s Argument—( Ad Judicium. )
• Chapter XIII.: The End Justifies the Means—( Ad Judicium. )
• Chapter XIV.: Opposer-general’s Justification:—not Measures But Men; Or, Not Men But Measures—( Ad Invidiam. )
• Chapter XV.: Rejection Instead of Amendment—( Ad Judicium. )
• Part V
• Chapter I.: Characters Common to All These Fallacies.
• Chapter II.: Of the Mischief Producible By Fallacies.
• Chapter III.: Causes of the Utterance of These Fallacies.
• Chapter IV.: Second Cause—interest Begotten-prejudice.
• Chapter V.: Third Cause—authority-begotten Prejudice.
• Chapter VI.: Fourth Cause—self-defence Against Counter-fallacies.
• Chapter VII.: Use of These Fallacies to the Utterers and Acceptors of Them.
• Chapter VIII.: Particular Demand For Fallacies Under the English Constitution.
• Chapter IX.: The Demand For Political Fallacies:—how Created By the State of Interests.
• Chapter X.: Different Parts Which May Be Borne In Relation to Fallacies.
• Chapter XI.: Uses of the Preceding Exposure.
• Anarchical Fallacies; Being an Examination of the Declarations of Rights Issued During the French Revolution.
• Advertisement.
• An Examination of the Declaration of the Rights of the Man and the Citizen Decreed By the Constituent Assembly In France.
• Preamble.
• A Critical Examination of the Declaration of Rights.
• Declaration of the Rights and Duties of the Man and the Citizen, Anno 1795.
• Observations On Parts of the Declaration of Rights, As Proposed By Citizen Sieyes.
• Principles of International Law.
• Essay I.: Objects of International Law.
• Essay II.: Of Subjects, Or of the Personal Extent of the Dominion of the Laws.
• Essay III.: Of War, Considered In Respect of Its Causes and Consequences.
• Essay IV.: A Plan For an Universal and Perpetual Peace.
• Appendix. * —junctiana Proposal.
• A Protest Against Law-taxes, Showing the Peculiar Mischievousness of All Such Impositions As Add to the Expense of Appeal to Justice.
• Supply Without Burden; Or Escheat Vice Taxation: Being a Proposal For a Saving of Taxes By an Extension of the Law of Escheat, Including Strictures On the Taxes On Collateral Succession Comprised In the Budget of 7 Th December 1795.
• Preface.
• Section I.: General Idea.
• Section II.: Order of the Details.
• Section III.: Advantages.
• Section IV.: Originality.
• Section V.: Produce.
• Section VI.: Application.
• Section VII.: Heads of Objection, With Answers. †
• Section VIII.: Existing Law.
• Section IX.: Ancient Law.
• Section X.: Blackstone.
• Tax With Monopoly; Or Hints of Certain Cases In Which, In Alleviation of the Burden of Taxation, Exclusive Privileges May Be Given As Against Future Competitors, Without Producing Any of the Ill Effects, Which In Most Cases Are Inseparable From Everyth
• I.: Stock-brokers.
• II.: Bankers.

CHAPTER III.

OF THE PLACE OF MEETING AND ITS DEPENDENCIES.

§ 1.

Of the Building suitable for a numerous assembly.

Magnificence of architecture in a building intended for a large political assembly, would be almost always injurious with regard to its utility. The essential points to be considered are—

1. Facility of hearing for the members.

2. Facility of seeing for the president.

3. Personal convenience for the individuals;

And lastly, Fitness for the service.

If any of the seats are so distant that the voice with difficulty reaches them, attention being rendered painful, will not be long sustained. The same distance will deprive one part of the assembly of the inspection of its president, and from this cause alone may give rise to habitual disorder.

Besides, those who do not hear are obliged to decide upon a borrowed opinion. It was thus that the great popular assemblies, in the ancient republics, were necessarily subjected to the direction of two or three demagogues.

The difficulty of making themselves heard may also drive from the service the individuals of greatest ability, if the strength of their lungs be not proportioned to the space that their voice is required to fill. Demosthenes might have been obliged to give way to Stentor. The first quality required would no longer be mental superiority, but a physical advantage, which, without being incompatible with talent, does not necessarily imply it. The presumption is even on the other side, and in favour of the feeble and valetudinary individual,—inaptitude for corporeal exercises being partly the cause and partly the effect of a studious disposition.

A form nearly circular, seats rising amphitheatrically above each other—the seat of the president so placed that he may see all the assembly—a central space for the secretaries and papers—contiguous rooms for committees—a gallery for auditors—a separate box for the reporters for the public papers;—such are the most important points. I do not enter into detail respecting the salubrity of the hall and its adaptation for the service. I only add, that a hall well adapted to all these objects would have more influence than would at first be suspected, in securing the assiduity of the members, and facilitating the exercise of their functions.

§ 2.

Table of Motions.

Reference is here made to a very simple mechanical apparatus for exhibiting to the eyes of the assembly the motion on which they are deliberating. The mere reading of a motion can only impart an imperfect and fugitive acquaintance with it. There is no other method for really presenting it to the minds of the members of an assembly, beside that of presenting it to their eyes.

A general idea of this table only will be presented here. We may suppose a gallery above the president’s chair, which presents a front consisting of two frames, nine feet high by six feet wide, filled with black canvas, made to open like folding doors;—that this canvas is regularly pierced for the reception of letters of so large a size as to be legible in every part of the place of meeting. These letters might be attached by an iron hook, in such manner that they could not be deranged. When a motion is about to become the object of debate, it would be given to the compositors, who would transcribe it upon the table, and by closing the gallery, exhibit it like a placard to the eyes of the whole assembly.

The utility of this invention, in its most general point of view, consists in so arranging matters that no one could avoid knowing upon what motion he ought to vote.

It is true, that what is of most importance to be known, is the sense of a proposition, and not its tenor—the spirit rather than the letter. But it is only by a knowledge of the letter that we can be sure of the spirit—a mistake in only a single word may entirely change the purport of a discourse: when the words are no longer present to the memory, we are in danger of falling into mistakes—a danger which it is a folly to incur, when it may be avoided by so simple and infallible a method.

There is not a moment in the course of a debate, in which each member has not occasion to know the motion, and to be able to consult it, either for making a correct application of what he hears, or for the purpose of taking an active part in the discussion. This knowledge is of the first importance to him, whether he act as a judge, by giving his vote—or as an advocate, by speaking for or against it.

In the first place, with respect to those who listen, nothing could be more agreeable and useful to them than this table of motions. Everything which relieves the memory, facilitates the understanding—there is much less doubt about the meaning, when there is none about the words. Upon the simple enunciation or reading of a motion—all those who have been distracted—all those who readily forget—all those who are slow in understanding,—are necessarily ignorant of the subject of debate, or obliged to apply to others for information. Hence arise irregular movements, reciprocal interruptions, confusion, and noise.

In the next place, as to those who speak, the utility of this table is still more clear. If the motion be of a certain length, it requires for its recollection an effort of memory, which distracts the attention at a moment in which there is a necessity for employing it altogether in another manner. There ought not to be a necessity of seeking for words when there is already too much to do in seeking for arguments: the hesitation occasioned by such a search, disturbs the current of the thoughts.

But besides, this effort of memory is often inefficacious. Nothing is more common than to see orators, and even practised orators, falling into involuntary errors with respect to the precise terms of a motion. If this be not perceived, an incorrect judgment is the result of the error: if it be perceived, the protests against it produce either apologies or disputes, and thence loss of time in accusations and defences.

The table of motions would contribute in many respects to the perfection of the debate. We have seen that it would preserve the orators from involuntary errors: it would be no less serviceable to the assembly as a security against intentional false misrepresentations—against insidious representations, by which sentiments are imputed to an antagonist which do not belong to him. This defect of candour springs from the same principle as calumny, which hopes that some portion of the reproach with which it asperses will not be wiped away. The individual who practises this meanness is screened by the difficulty of distinguishing his false representation from involuntary error. Remove this difficulty, and the temptation to be guilty of the meanness will be removed also.

Digressions are another inconvenience in debates: they often arise from the weakness of the mind, which without intending it, loses sight of the point with which it ought to be engaged. But when the orator forgets his subject, and begins to wander, a table of motions offers the readiest means for recalling him. Under the present régime, how is this evil remedied? It is necessary for a member to rise, to interrupt the speaker, and call him to order. This is a provocation—it is a reproach—it wounds his self-love. The orator attacked, defends himself; there is no longer a debate upon the motion, but a discussion respecting the application of his arguments. The unpleasantness of these scenes, when they are not animated by the spirit of party, leads to the toleration of a multitude of digressions, experience having proved that the remedy is worse than the disease; whilst as to the president, although it be his duty to prevent these wanderings, his prudence leads him to avoid giving frequent and disagreeable admonitions, and entering into altercations which might compromise his dignity or his impartiality.

But if we suppose the table of motions placed above him, the case would be very different. He might, without interrupting the speaker, warn him by a simple gesture; and this quiet sign would not be accompanied by the danger of a personal appeal. It would be a sedative, and not a stimulant—a suggestion, and not an accusation; it would be the act, not of an adversary, but of a judge. The member would not be called upon to stop—would not be required to make a painful submission and avowal of error; he would only have, in continuing his speech, to return to the subject of discussion; and he could not be ignorant that the sign of the president was an appeal to the assembly, the attention of which had been directed to him.

In conclusion, it may be observed that this table would give great facility in the production of good amendments. If a simple reading be sufficient for correctly seizing the spirit of a motion, it is not sufficient for giving attention to all its terms. When observations are to be made upon style, we must not trust to memory: it is desirable that the writing should be under the eye—that it may be considered in many points of view—that the microscope of attention may be applied to all its parts; and there is no other method of discovering the imperfections of detail. This kind of criticism is a peculiar talent, in which individuals are formed to excel who often do not possess any of the gifts of oratory. The profound grammarian is more useful than is generally thought to the legislator.

This table would possess a further merit, if it should only procure for the assembly the services of one clever man, who had been discouraged by a defect of memory, and retained by this defect in a state of inaction. It is well known that the two most important faculties of the mind—judgment and invention—are often very strong in those individuals who have very weak memories, especially with regard to words. With respect to talent, as well as virtue, the smaller the service required, the less the danger of its being wanting.

It may perhaps be said, that the printing of the motions before the debate, would nearly accomplish the same object, and would supply the place of this table.

But in the course of a debate, how many accidental and unforeseen motions may be made!—how many amendments which there is not time to print! It may also be observed, that a paper to be read, to be consulted, does not afford to the hearers, or the speaker, the same facility as a table which remains immovably before their eyes. It is not necessary continually to stoop for the purpose of listening or speaking, but the eye glances over the lines of the table without interruption. And besides this, the great utility of the table, the strength which its gives to the regulation against useless digressions simply by means of an admonitory sign, is an advantage not to be obtained by printing the motion.*

§ 3.

Description of a Table of Motions.

The plan here pointed out may serve for a first attempt: but the easier the mode of execution, the less important are the details.

Frames.—They may be made like two folding doors. They should be filled with canvas, stretched so as to present an even surface, not sinking in the middle.

Size of the letters.—This would depend upon the size of the place of meeting;—a black ground, the letters gilt;—a strong light thrown upon the table;—the form of the letter rather oblong than square.

Method of fixing them.—The letters being made like a button, should have a hook, by means of which they might be fixed with the greatest ease. The regularity of the lines might be secured by a thread in the cloth.

Composition of the table.—The two folding leaves turn upon their hinges like a door. The compositors whilst at work are visible to the assembly (which will secure their diligence and emulation.) The two leaves closed together, will present the appearance of two pages of an open book.

Amendments.—These might be exhibited upon a separate table, placed immediately beside the others, with a reference which would direct the eye to the part of the original motion which it was wished to amend, and a word at the top of the table, which should simply indicate that the amendment is suppressive, additive, or substitutive.

Multiplication of tables.—There might be an assortment of tables, upon which all the known motions might be previously prepared, and thus be made to succeed each other rapidly.

Contents of the Table of Motions.

Suppose that each frame is nine feet high by six wide, and the letters one and a half inch by three quarters of an inch, the two leaves of the table would contain more than four ordinary octavo printed pages. This may be ascertained by calculation.

At fifty-two feet distant, I have found in a church that the table of the decalogue was perfectly legible for ordinary eyes, when the letters were three quarters of an inch high.

Composition.—The labours of the compositors may perhaps be accelerated by what is called the logographical principle, which consists in composing not with letters, but with entire words.

By the multiplication of tables, a composition which was too long to be presented all at once to the eyes of the assembly, might be presented in parts. A project of a law, for example, whatever was its extent, might be previously prepared, and the tables shifted, without suspending the labours of the assembly.

But this plan has its limits;—that is to say, there are cases and circumstances which would prevent its being employed on account of time and space: these limits do not, however, furnish any argument against its utility upon all occasions on which it can be employed. This utility is so great—the inconveniences of the present plan are so manifest, that one might be astonished that this method had not been thought of before: but in these affairs it is not proper to be astonished at anything. Under the auspices of routine, barbarism gives law to civilization, and ignorance prevails over experience.

§ 4.

On a Table of Regulations.

When good rules are established, it still remains to make arrangements for facilitating their execution—for making them known. A law can have no effect except as it is known.

The regulations of the assembly, reduced into the form of a table, and readable from all parts of the place of assembly, ought to be placed by the side of the president.

If they are too voluminous, the tables ought to be multiplied; but the essential points ought to be collected together in the principal table.

In every large political assembly, nothing is more frequent than an appeal to the regulations, either for attack or for defence. The contravention consumes time—the correction consumes still more. The rules are always as if they were non-existing for one part of the assembly. The new members are but little acquainted with them; and they are not always present to the minds of the most experienced veterans. Such, at least, is the state of things in the British parliament;—and it cannot be otherwise, because the regulations, far from being exposed to the eyes, only exist by tradition, and are confided only to the keeping of a treacherous memory.

A small table would not answer the end: a large table is an object of study in every moment when the attention is vacant. The least deviation becomes sensible; and hence deviations become rare; for rules are rarely transgressed when they cannot be transgressed with impunity,—when the law which condemns is before your eyes, and the tribunal which judges you at the same moment, no one will be more tempted to violate it than he would be tempted to steal red-hot iron. Procedure, which moves on other occasions with the pace of the tortoise, is in this case rapid as the lightning.

General laws, whatever may be done for their promulgation, cannot be made universally notorious. But particular laws made for one assembly may be constantly visible within it. The method is so easy, it cannot be said to be unknown. There is not a club in England which has not its regulations exhibited in its place of meeting. There is the same foresight in gaming-houses. But the bitter reflection often recurs, that the wisdom displayed in the conduct of human affairs is often in the inverse proportion of their importance. Governments have great progress to make before they will have attained, in the management of public matters, to the prudence which commonly conducts private affairs. The cause may be easily pointed out, but not the remedy.

[* ]I proposed this plan of Mr. Bentham’s to many of the members of the Constituent Assembly of France. They considered it very ingenious, and even very useful, but that it could not be carried into effect, because of the rapidity of the motions and operations of the assembly. During many months I attended all its sittings with the greatest assiduity; and I cannot forget how often I have experienced difficulty in ascertaining what was the subject of deliberation: I have asked many members who were not able to inform me. When even the motion was known, it was only in its general object—never in all its details and in its precise terms. There were consequently continual disputes about words: a momentary absence, a momentary abstraction, a late entry, were sufficient to produce entire ignorance of the subject of debate. Individuals sought to instruct themselves by conversations, which formed the assembly into groupes, and gave rise to little particular debates. A multitude of motions thus presented passed as spectres, and were only half known. Hence the indolent members either went away without voting, or voted upon trust; that is to say, not being able to form an opinion, they abandoned themselves to that of their party.

These observations may appear but trifles, but the sum of these trifles produces great effects. A torrent is composed of drops of water, and a mountain of grains of sand.—Note by Dumont.